Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees (Environment and Land Case Civil Suit 9 of 2019) [2026] KEELC 1596 (KLR)
The bottom line
#A property developer lost its Kshs.324 million sewer claim because infrastructure built on a public road reserve isn't legally yours, and every shilling claimed must be strictly proved.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff's sub-trunk sewer line constructed along Quarry road (Q39) and Old Mombasa road is its lawful property and if the Plaintiff has proprietary rights over it
- 2.Whether the Plaintiff has proved that the Defendant destroyed its sub-trunk sewer line
- 3.Whether the Plaintiff is entitled to General Damages as well as Special damages amounting to kshs. 324,886,269
- 4.Whether the Defendant has made a case for demolition and restoration orders
- 5.Whether the Defendant has demonstrated entitlement to indemnity and damages of kshs.10 million for loss of business opportunity
- 6.Whether the Plaintiff is entitled to the Orders as sought in the Plaint
- 7.Whether the Defendant is entitled to the Orders as sought in the Counterclaim
Key legal issues
#Proprietary rights over infrastructure built on a public road reserve
The Plaintiff cannot claim the sewer line on a road reserve as its lawful property; protection of property does not extend to unlawfully acquired property
PW1 admitted the sewer line was constructed on a road reserve. The sewer project had been declared illegal in the Safaricom petition, upheld on appeal. Citing the Supreme Court in Musembi v Moi Educational Centre and article 40(6) of the Constitution, the court held constitutional property protection extends only to lawfully acquired property, and a court ought not assist a party implicated in illegality.
Whether the Defendant destroyed the sewer line
The Plaintiff failed to discharge its burden of proof; the Defendant did not destroy the sewer line as claimed
Photographs did not show any person or machine destroying the sewer line; witnesses did not witness destruction; the Plaintiff had pleaded the sewer line was incomplete; police did not charge anyone; a prior contempt ruling found no excavation or destruction. Mere presence of Defendant's equipment in the vicinity did not establish responsibility.
Entitlement to general and special damages of Kshs.324,886,269
Claim not proved; damages declined
Special damages must be strictly proved. The Plaintiff's expert witness was not called and key documents were only marked for identification. Damages exceeding one billion shillings were argued in submissions but not proved by evidence.
Defendant's counterclaim for demolition, restoration, indemnity and damages of Kshs.10 million
Counterclaim dismissed; Defendant also failed to prove its claim
The roads are public land maintained by government and KENHA was constructing them, so KENHA should clear debris. On damages, correspondence from third parties did not attribute losses to the sewer line and no sale agreements or proposed leases were produced to prove the alleged loss of business opportunity.
Legal principles established
#- Special damages must be specifically pleaded and strictly proved
- Constitutional protection of property extends only to lawfully acquired property
- A court should not lend its aid to enforce a claim tainted by illegality of which the claimant is itself implicated
- Sections 108 and 111 of EMCA empower NEMA and the court to issue environmental restoration orders
Court orders
#- 1.The Plaintiff's suit is dismissed with costs to the Defendant
- 2.The Defendant's Counterclaim is dismissed but with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over claims concerning land, infrastructure and environmental restoration
Relief refused
#Permanent injunction restraining interference with the sub-trunk sewer line
Plaintiff failed to prove proprietary rights over a sewer line built on a road reserve and failed to prove destruction by the Defendant
Special damages of Kshs.324,886,269 and general damages
Special damages not strictly proved; no expert evidence tendered
Counterclaim: demolition and restoration orders against the Plaintiff
Road reserves are public land and KENHA, which constructed the roads, should clear the debris
Counterclaim: indemnity and damages of Kshs.10 million for loss of business opportunity
Defendant failed to discharge its burden of proof; claim remote
Costs
Suit dismissed with costs to the Defendant; Counterclaim dismissed with no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, I find that the Plaintiff has not proved its case on a balance of probability and will dismiss it with costs to the Defendant. I will also proceed to dismiss the Counterclaim but make no orders as to costs.
I find that since the Plaintiff constructed the disputed sub trunk sewer line on a road reserve, it cannot claim that it is its lawful property and that its right to property has been violated as the said land did not belong to it.
To my mind, the mere fact that there were Defendant's equipment in the vicinity of the sewer line does not make it responsible for destruction.
it is trite law that special damages must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit.
I hence find that the Defendant has not proved its claim in the Counter claim and is hence not entitled to the Orders as sought.
Issues in the judgment
#Judge's coram presence and delivery location conflict with the cause title: the suit is in the Environment and Land Court at Machakos, but the judgment is dated, signed and delivered at Nairobi.
The special damages figure is stated inconsistently within the judgment (Kshs.324,886,269 in the relief sought and determination, Kshs.324,886,296 in PW1's estimate).
The deponent of the Safaricom petition replying affidavit is identified inconsistently as 'Zeyun Young' in one passage and 'Zeyun Yang' in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees (Environment and Land Case Civil Suit 9 of 2019) [2026] KEELC 1596 (KLR)", Case Analysis (2026). ELC Civil Suit No. 9 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1596/eng@2026-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.